Order D.N. Patel, J. 1. This appeal has been preferred by the original accused of Sessions Trial No. 355 of 1999, namely, Tezu Munda, against the judgment and order of conviction and sentence dated 21st December, 2004 and 24th December, 2004 respectively, passed by learned Additional District & Sessions Judge (F.T.C. No. 6), Hazaribagh, in Sessions Trial No. 355 of 1999, arising out of Ramgarh P.S. Case No. 269 of 1998, whereby, the sole appellant, namely, Tezu Munda, has been convicted for the offence under Sections 302 of the Indian Penal Code and sentenced to undergo imprisonment for life for causing murder of one Mangal Munda. Further, a fine of Rs.25,000/- has also been imposed upon him, to be paid in favour of the legal heirs of the deceased, if realized from the appellant. Facts of the case:- 2. If the case of the prosecution is unfolded, the facts are as under:- On 13.12.1998-Sunday at day hours, the informant Dewaki Munda wife of late Mangal Munda gave her fardbeyan along with her son Raju in front of the dead body of her husband to the police that she is Munda by caste and is Indian. In the day hours, she used to beg in station and town and her husband Mangal Munda (deceased) used to grow vegetable and sell it, by taking field from other persons on Batai. In the evening of last Saturday, she was with her husband and children in her hut (Jhopari). In the night Teju Munda (accused), who is servant of the son of Aseshwar Mahto, and Singh Ji, who is Rickshaw Puller, came to her hut (Jhopri) and by hurling abuses, caught the hand of her husband Mangal Munda and started dragging him from the hut (Jhopri). When the informant asked Teju Munda as to why he is doing this, then he told her that her husband had sold the potato, by digging out the same from the field of his Malik (Master) and he is taking him to his Malik. The informant tried to stop them but they forcibly dragged her husband Mangal Munda from the hut (Jhopri) and by assaulting him, took him towards the house of Aseshwar Mahato which is situated near the pond. The informant reached there by following them and saw both of them assaulting her husband. The informant tried to stop them but they forcibly dragged her husband Mangal Munda from the hut (Jhopri) and by assaulting him, took him towards the house of Aseshwar Mahato which is situated near the pond. The informant reached there by following them and saw both of them assaulting her husband. Having seen the informant there, Teju Munda tried to catch her, but, she flew away to her house and out of fear, she did not come out of her house for whole night. Today in the morning, she along with her son Raju went near the pond in search of her husband and saw a mob assembled at a house, constructed near the pond. When the informant reached there, she saw her husband Mangal Munda lying dead on the ground and also saw some blood fallen on the ground. The informant has claimed that Teju Munda, who is servant of the son of Asheshwar Mahto, and Singh Ji, in furtherance of common intention, have committed murder of her husband, by assaulting him, on false allegation of theft. Summary of Prosecution Witnesses:- Eight witnesses were examined by the prosecution: P.W-1 Dewaki Munda She is wife of deceased Mangal Munda. She has deposed that the accused persons had taken away her husband from the hut in the evening and took him in the house near the pond and assaulted him there and in the morning dead body of her husband was found in the house near the pond. P.W-2 Raju Manda (13 years old) He is the son of deceased Mangal Munda. He has deposed that at 8 P.M. the accused persons had taken away his father and in the morning he saw the dead body of his father. P.W-3 Sudhir Munda He is the son of deceased Mangal Munda. He has deposed that at 8 P.M. the accused persons had taken away his father near the house at pond and assaulted him there and in the morning he saw the dead body of his father. P.W-4 Suresh Kumar He has proved his signature in the carbon copy of Inquest report i.e. marked as Ext.1 P.W-5 Moti Ram (Clerk of P.P) He has proved the formal FIR i.e. marked as Ext.2 P.W-6 Dr. P.W-4 Suresh Kumar He has proved his signature in the carbon copy of Inquest report i.e. marked as Ext.1 P.W-5 Moti Ram (Clerk of P.P) He has proved the formal FIR i.e. marked as Ext.2 P.W-6 Dr. Prem Das He is the Doctor who has conducted the Post-mortem of the dead body of Mangal Munda and has proved the Post-mortem report i.e. marked as Ext.3 P.W-7 Kantu Mahto He has proved his thumb mark in the Inquest report. P.W-8 Arun Kumar Tiwari   He is the Investigating officer of this case. He has proved the fardbeyan i.e. marked as Ext.4 and has also proved the carbon copy of Inquest report i.e. marked as Ext.5. He has proved endorsement for forwarding fardbeyan in his writing and signature i.e. marked as Ext.6 and has also proved the endorsement of Sri Ram Bachan Singh in fardbeyan for registration of Ramgarh P.S. Case No. 269/1998 dated 13.12.1998. Arguments on behalf of the appellant:- 3. It is submitted by the learned counsel for the appellant that there are major omissions, contradictions and improvements in the deposition of the prosecution witnesses. Moreover, PW 1, who is wife of the deceased, in her Fard-beyan has not stated that her son (PW 3) had ever accompanied her, when she had followed her husband. Similarly PW 1 has also not stated about PW 2, who is another son of PW 1, that he had accompanied her. Both these sons of PW 1, who are PW 2 and PW 3, are, in fact, not the eye witnesses to the occurrence, at all. This aspect of the matter has not been properly appreciated by the learned trial court. So far as PW 1 is concerned, she is also not an eye witness to the occurrence, at all, because her husband was alive when she left the place of occurrence. It is further submitted by the learned counsel for the appellant that there are more than one accused and who has caused the injury, is not narrated by PW 1 before the learned trial court. Moreover, “last seen together” theory is also not proved by the prosecution, because there is a long lapse of time in between the death of Mandal Munda (deceased) and the time, when this appellant was seen in the company of the deceased. Moreover, “last seen together” theory is also not proved by the prosecution, because there is a long lapse of time in between the death of Mandal Munda (deceased) and the time, when this appellant was seen in the company of the deceased. It is further submitted by the learned counsel for the appellant that PW 3 has stated that knife blows were given by this appellant to the deceased whereas looking to the medical evidence, given by PW 6-Dr. Prem Das, there is not a single injury, which is capable of being caused by knife. It is also alternatively submitted by the learned counsel for the appellant that this appellant is languishing in judicial custody since last approximately 15 years, 6 months and 4 days as on 2nd July, 2014. Learned counsel for the appellant has relied upon several decisions, including a decision, rendered in the case of Badal Murmu & ors. v. State of West Bengal, as reported in (2014)3 SCC 366 , especially paragraph nos. 8, 9, 10 and 11 thereof, and has submitted that this appellant is a rustic tribal; intention is not proved by the prosecution and no injury has been found on the person of the deceased, caused by sharp cutting instrument. In fact, the appellant is an employee of the owner of the field, from where the potato was stolen away by the deceased. Thus, looking to these aspects of the matter and also looking to the fact that by now the appellant has remained in custody approximately for a period of 15 years and 7 months, the offence may be converted from murder to culpable homicide, not amounting to murder and the appellant may be punished for the offence under Section 304 Part II of the Indian Penal Code, instead of Section 302 of the Indian Penal Code, because he has already undergone the highest sentence under this Section and, therefore, he may be forthwith released from custody. Arguments on behalf of the State:- 4. It is submitted by the learned A.P.P., appearing on behalf of the State, that no error has been committed by the trial court in appreciating the evidences of more than one eye witness, who are PW 1, PW 2 and PW 3. Arguments on behalf of the State:- 4. It is submitted by the learned A.P.P., appearing on behalf of the State, that no error has been committed by the trial court in appreciating the evidences of more than one eye witness, who are PW 1, PW 2 and PW 3. Looking to the depositions of these three witnesses, it appears that this appellant along with one other co-accused had come at the house of the deceased and taken away the husband of PW 1 and the husband of the informant was beaten by this appellant. Wife of the deceased (PW 1) followed him and this appellant had also tried to catch her and that is why the informant had run away. Thereafter, husband of PW 1 was locked in a room and in the morning he was found dead. Thus, the prosecution has proved its case beyond reasonable doubt on the basis of “last seen together” theory and also looking to injuries, which were ante-mortem in nature and were caused within 24 hours of the post-mortem examination, as per the post-mortem report. The post-mortem of the body of the deceased was carried by PW6- Dr. Prem Das at about 4.00 pm on 13th December, 1998, which tallies with the time of murder. Thus, “last seen together” theory has been proved by the prosecution, beyond reasonable doubt. Learned counsel for the State has also relied upon several decisions, including. (i) (2011)14 SCC 401 (Ajitsingh Harnamsingh Gujral vs. State of Maharashtra); (ii) (2012)3 SCC (Cri.) 685 (Shyamal Ghosh vs. State of West Bengal), (iii)(2013)1 SCC (Cri.) 1136 (Jagroop Singh vs. State of Punjab): and (iv)(2013)3 SCC (Cri.) 27 (Harivadan Babubhai Patel vs. State of Gujarat) On the basis of the ratio, laid down in the aforesaid decisions, it has been stated by the learned counsel for the State that if the appellant has been found lastly in the company of the deceased and within couple of hours, there is death of the deceased, then the onus of proof is shifted upon the appellant and this burden has not been discharged by the appellant. This aspect of the matter has been properly appreciated by the learned trial court and, therefore, this appeal may not be entertained by this Court. Reasons: 5. This aspect of the matter has been properly appreciated by the learned trial court and, therefore, this appeal may not be entertained by this Court. Reasons: 5. Having heard learned counsels for both the sides and looking to the evidences on record, it appears that the incident of murder of Mangal Munda had taken place during the night hours in between 12th and 13th December, 1998. In the night of 12th December, 1998 when PW 1- the informant Deoki Munda was at her house, this appellant and one other co-accused came there and asked the deceased that his master is calling him (deceased), because he had stolen potato from his field. This is how the deceased was taken away by this appellant. PW 1-wife of Mangal Munda (deceased) followed him and saw this appellant and one other co-accused beating him (Mangal Munda) and when she (the informant) tried to save his life, the appellant chased her and, therefore, she returned to her house. In the morning again when she reached at the place where her husband was locked in a room, he (Mangal Munda) was found dead. On the basis of this information, First information Report was instituted, investigation was carried out, charge sheet was filed and on the basis of the evidences on record of PW 1 to PW 8, the appellant was convicted for causing murder of the deceased, based upon “last seen together” theory. 6. Thus, from the oral evidence, it appears that PW 1 to PW 3 are so called eye witnesses on the point of “last seen together” theory, whereas PW 6 is the doctor, who has carried out the post-mortem examination the dead body of Mangal Munda, and PW 8 is the Investigating Officer. 7. Looking to the evidence of PW 1, it appears that this appellant and one other co-accused had come at the house of the deceased, who were telling the deceased that he had stolen away the potato from the field of the son of Asheshwar Mahto and, therefore, he has called him (deceased). PW 1 had followed her husband and seen this appellant and one other co-accused beating Mangal Munda (deceased). This incident has taken place at about 8.00 pm and must have continued for some time thereafter. Thereafter, Mangal Munda was locked in a room. In the morning hours, Mangal Munda was found dead. PW 1 had followed her husband and seen this appellant and one other co-accused beating Mangal Munda (deceased). This incident has taken place at about 8.00 pm and must have continued for some time thereafter. Thereafter, Mangal Munda was locked in a room. In the morning hours, Mangal Munda was found dead. Thus, “last seen together” theory has been proved by this PW 1. Time of death of Mangal Munda is also proximate as per the medical evidence, given by PW 6, who has carried out post-mortem examination of the dead body of deceased Mangal Munda at 4.00 pm on 13th December, 1998 and the time of death, as per medical evidence, is within 24 hours. Post-Mortem Report has been marked as Ext. 3. 8. Looking to the deposition, given by PW 2-Raju Munda, who is son of PW 1 and the deceased, it appears that he has never followed his father. Thus, this PW 2 is not proving the “last seen together” theory. 9. So far as PW 3-Sudhir Munda, who is another son of PW 1 and the deceased, is concerned, he is also not proving the “last seen together” theory, because PW 1-the informant has never stated that her son (PW 3) also accompanied her at the time when the appellant and one other co-accused had taken away Mangal Munda (deceased) from his house. Moreover, he has stated in his deposition that his father was given knife blows whereas, as per the medical evidence, there is no knife blow at all, on the dead body of the deceased and thus, this PW 3 is untrustworthy and unreliable. 10. Thus, the whole case of the prosecution is based upon the deposition of only one prosecution witness, who is PW 1. 11. Looking to the totality of circumstances, it appears that this appellant is an employee of someone else, whose potato was stolen away by the deceased, otherwise there was no intention of this appellant to commit murder of the deceased. 12. The reliance placed by learned counsel for the appellant on a decision, rendered by Hon'ble Apex Court in the case of Badal Murmu & ors. vs. State of West Bengal, as reported in (2014)3 SCC 366 , especially paragraph nos. 6, 7, 8, 9, 10 and 11 thereof, reads as under: “6. 12. The reliance placed by learned counsel for the appellant on a decision, rendered by Hon'ble Apex Court in the case of Badal Murmu & ors. vs. State of West Bengal, as reported in (2014)3 SCC 366 , especially paragraph nos. 6, 7, 8, 9, 10 and 11 thereof, reads as under: “6. Ms Makhija, learned amicus, who on our request is appearing for the appellants, submitted that the prosecution has failed to prove its case beyond reasonable doubt and, therefore, the appellants deserve to be acquitted. She submitted that, in any case, if this Court comes to a conclusion that the appellants are guilty, then it should hold them guilty of culpable homicide not amounting to murder because there was no intention to kill the deceased. The counsel submitted that the appellants have admittedly used lathis and, therefore, Section 304 Part II IPC is clearly attracted to this case. In this connection, the counsel relied on Kirti Mahto v. State of Bihar. The counsel submitted that the injuries are not on the vital part of the deceased’s body. They are superficial in nature. This also indicates that there was no intention to kill the deceased. In this connection, the counsel relied on Molu v. State of Haryana. The counsel submitted that the appellants are poor tribals; they are in jail for a considerably long time and, hence, they may be sentenced to the period already undergone by resorting to Section 304 Part II IPC. 7. Mr Anip Sachthey, learned counsel for the State, on the other hand, submitted that the ocular evidence establishes the prosecution case. The counsel submitted that it is true that the appellants used lathis but even if the common object was to inflict injuries, the appellants who were members of the unlawful assembly knew that the murder was likely to be committed in prosecution of common object and since death was caused, every member of the unlawful assembly must be held guilty of murder. In support of his submissions, the counsel relied on Munivel v. State of T.N. and Alister Anthony Pareira v. State of Maharashtra. The counsel submitted that the appellants persistently assaulted deceased Jhore Soren and caused grievous injuries to him which resulted in his death. The intention to commit murder is clear and, hence, they are guilty of murder. In this connection, he relied on Kashmiri Lal v. State of Punjab. The counsel submitted that the appellants persistently assaulted deceased Jhore Soren and caused grievous injuries to him which resulted in his death. The intention to commit murder is clear and, hence, they are guilty of murder. In this connection, he relied on Kashmiri Lal v. State of Punjab. The counsel submitted that the appeal be dismissed. 8. PW 1 Nilmoni, the first wife of deceased Jhore Soren narrated the entire incident after describing the previous incident about the stealing of the hen by her husband and the penalty imposed by the Salishman. She stated how PW 7 Kanka was tied to a Kul tree and beaten up; how PW 7 Kanka fled away and how deceased Jhore Soren was beaten to death by using lathis by the appellants after tying him to a bamboo pole. She did not, however, describe the exact role of each of the appellants. She did not state who assaulted where. PW 3, Rabi Soren is the sister of deceased Jhore Soren. Her evidence is on similar lines. PW 6, Sumi Soren, the second wife of deceased Jhore Soren also corroborated PW 1 Nilmoni so far as the assault on deceased Jhore Soren is concerned. 9. PW 7 Kanka, the injured witness described the events that preceded the incident and stated how he and deceased Jhore Soren were tied to trees; how appellants, Badal, Sambhu, Ragai, Bhagbat and Phangu assaulted deceased Jhore Soren with lathis; how appellant, Sombha was guarding the place with a tangi and how the other appellants encouraged them. He stated that he somehow managed to escape and got himself examined by the doctor. His evidence indicates that out of fear he ran away and did not inform anyone about the incident. PW 9, Dr Prodip Kumar, who did the post-mortem of deceased Jhore Soren stated that the death was caused due to the injuries described by him and that the injuries could be caused by a blunt object like lathi. 10. The evidence of PW 1 Nilmoni, PW 3 Rabi Soren, PW 6 Sumi Soren and PW 7 Kanka is truthful and has rightly been relied upon. They are rustic witnesses and have candidly stated all that they had seen. Pertinently, PW 7 Kanka did not hesitate to name his brother as one of the assailants. 10. The evidence of PW 1 Nilmoni, PW 3 Rabi Soren, PW 6 Sumi Soren and PW 7 Kanka is truthful and has rightly been relied upon. They are rustic witnesses and have candidly stated all that they had seen. Pertinently, PW 7 Kanka did not hesitate to name his brother as one of the assailants. No doubt, these witnesses are related to deceased Jhore Soren, but the tenor of their evidence is such that it is not possible to say that they have falsely involved the appellants. Their evidence has a ring of truth. The prosecution has, therefore, proved that the appellants assaulted deceased Jhore Soren with lathis which resulted in his death. 11. Now the question is which offence was committed by the appellants. The cause of this entire episode is very trivial. Appellant Bhagbat’s hen was stolen by deceased Jhore Soren. This dispute was settled. Penalty was paid. Yet, the appellants called deceased Jhore Soren to Saheb Hasda’s courtyard. Deceased Jhore Soren went there with PW 7 Kanka. They were tied to the trees and beaten up. It is argued that these facts show that the appellants shared common object to kill deceased Jhore Soren and in prosecution of the common object, they killed deceased Jhore Soren. In our opinion, the attendant circumstances do not indicate that the appellants shared any common object to kill deceased Jhore Soren. It appears that they were not happy with the penalty imposed by the Salishman. Therefore, they called him to Saheb Hasda’s courtyard and beat him with lathis. If they wanted to kill him, they would have used some sharp-cutting weapons. In fact, the evidence on record shows that some of the appellants had tangies in their hand. PW 1 Nilmoni stated that some of them had tangies but they did not use them. Really, if the appellants wanted to kill deceased Jhore Soren, the easiest way to achieve their object would have been to use the tangies and assault him.” 13. It appears that this appellant has already remained in judicial custody for approximately 15 years and 7 months as on today. The theft is of potato only. The appellant is an employee of someone from whose field, potato was stolen away by the deceased. The appellant is also a rustic tribal of the district of Hazaribagh (now Ramgarh). It appears that this appellant has already remained in judicial custody for approximately 15 years and 7 months as on today. The theft is of potato only. The appellant is an employee of someone from whose field, potato was stolen away by the deceased. The appellant is also a rustic tribal of the district of Hazaribagh (now Ramgarh). Moreover, looking to the evidences, given by PW 1, neither PW 2 nor PW 3 are the witnesses of assault by this appellant upon the deceased. There is no injury by knife, as stated by PW 3, on the person of the deceased. 14. Thus, in view of the evidences on record and looking to the peculiar circumstances of this case and also keeping in view the ratio, laid down by Hon'ble Apex Court in the case of Badal Murmu & ors. vs. State of West Bengal (supra), in our opinion, convicting this appellant, namely, Tezu Munda, for committing culpable homicide, not amounting to murder and thereby sentencing him for the period, already undergone by him, by resorting to Section 304 Part II of the Indian Penal Code, will meet the ends of justice. To this extent, the judgment of conviction of the appellant under Section 302 of the Indian Penal Code, passed by learned Additional District & Sessions Judge (F.T.C. No. 6), Hazaribagh, is hereby modified to Section 304 Part II of the Indian Penal Code and thereby, this appellant is sentenced for the period, he has already undergone. We hereby direct that the appellant, namely, Tezu Munda, shall be released forthwith from the judicial custody, if his presence is not required in any other offence. The appeal is, thus, partly allowed and disposed of.